Excerpt:.....under article 227 of the constitution.
- 6. the preliminary evidence adduced on behalf of the husband in the complaint including the statement of the complainant himself failed to make out even prima facie case for offence under section 420. india penal code and consequently the magistrate refused to issue any summons to the persons sought to be proceeded against. if a husband can physically torture his wife by burning her hand with boiling water, and can also mentally torture her by filing false complaint making serious allegations of her unchastity and cheating against her and her brother and his landlord, who showed sympathy for the wife and also against the doctor, who treated her, the wife is fully justified in bidding good-bye to his hearth and home and seek assylum for her..........occasion of diwali in the year 1963 in the company of lakhbir singh and bhagar singh, friends of kapur singh, brother the wife and she carried with her clothes and ornaments and rs. 500/- in cash and thus withdrew herself from his society. it is stated by him that inspite of several attempts made to have her restored, she did not return to his house.2. in the written statement filed on behalf of the wife, she admitted that she was married to the appellant but denied the allegations that she had withdrawn herself from the society and her husband or had removed form his house any case, clothes or ornaments. she pleaded that it is the husband, who used to object against the inadequacy of the dowry, which she brought along with her on the occasion of her marriage and used to taunt and.....

Judgment:

1. This is appeal by Karnail Singh against his wife, Bhupinder Kaur. It is directed against the judgment of Shri Ved Prakash. Senior Subordinate Judge, Amritsar dated December 24, 1965 dismissing petition under section 9 of the Hindu Marriage Act, 1955 hereinafter called the Act, filed against the respondent for restitution of conjugal rights. The facts leading to the appeal are as under:--

The parties were married on April 21, 1963 at Village Jalia Majra in the district of Ludhiana. After marriage, they lived together in village Bharariwal in the district of Amritsar. In the Petition filed on behalf of the husband, it is stated that in his absence the wife left his house on the occasion of Diwali in the year 1963 in the company of Lakhbir Singh and Bhagar Singh, friends of Kapur Singh, brother the wife and she carried with her clothes and ornaments and Rs. 500/- in cash and thus withdrew herself from his society. It is stated by him that inspite of several attempts made to have her restored, she did not return to his house.

2. In the written statement filed on behalf of the wife, she admitted that she was married to the appellant but denied the allegations that she had withdrawn herself from the society and her husband or had removed form his house any case, clothes or ornaments. She pleaded that it is the husband, who used to object against the inadequacy of the dowry, which she brought along with her on the occasion of her marriage and used to taunt and tease here on that score, that the husband on one occasion forcibly took away from the wife sum of Rs. 1,000/-. which amount had been given to her by her parents on the occasion of her muklawa, that she was being maltereated by the husband and was physically and mentally tortured and that her husband every now and then pressed her to extort money from her parents and to gain the end of that extortion, he used to starve her.

She stated that once her brother, Kapur singh visited her in the house of the husband and she was taunted by the husband in his presence, that it was in the presence of Lakhbir Singh that the husband demanded Rs. 5,000/- from Kapur Singh, who expressed his inability to meet the demand and that feeling annoyed over the reply given by Kapur Singh, the husband kicked off the kettle, in which water for preparation of tea for Kapur Singh, was being boiled. That consequent upon the kettle being kicked off, the boiling water fell on the left hand of the wife and her hand bore burns. She added that Kapur Singh removed her for treatment to Shri Guru Ram Das Free Hospital Amritsar. There she was treated by Dr. Bhagat Singh. She sated that during her treatment, the husband did not care to enquire about her health, although he was responsible for burning her hand. At the end she stated that a false complaint for offence under Section 420 and 506 read with Section 34 of the Indian Penal Code was filed by the husband, in which serious and false allegations attacking her chastity were levelled against her. That complaint was filed against the said wife Dr. Bhagat Singh, Kapur Singh and Lakbhir Singh. She also added that as her husband was not caring to maintain her, she made an application under Section 488 of the Criminal Procedure Code claiming maintenance allowance from the husband.

3. The above pleadings of the parties gave rise to the following issues:--

(1) Whether the respondent has withdrawn from the society of the appellant without any reasonable excuse.

(2) Whether the appellant has treated the respondent with such cruelty as to cause a reasonable apprehension in her mind that it would be harmful and injurious for her to live with him.

4. In support of the above issues the husband produced Boor Singh, Shangara Singh, Ajaib Singh and Gurdial Singh apart from himself going into the witness box. In rebuttal, the wife examined Dr. Bhagat Singh, Lakhbir Singh and Kapur Singh apart from herself going into the witness box. The wife also proved Exhibit R.2 copy of the above referred to compliant filed by the husband against her and others. By order dated December 13, 1963, the Magistrate dismissed that complaint after recording preliminary evidence. Certified copy of the order of dismissal is Exhibit R.1 certified copy of the reply filed on behalf of the husband to the application for maintenance made under Section 488 of the Criminal Procedure Code has been proved as Exhibit R.3. After considering both oral and the documentary evidence, the trial court came to the conclusion that the wife had withdrawn from the society of the husband because she was being treated with cruelty, which could cause reasonable apprehension in her mind that it would be harmful and injurious for her to live with him.

5. Certified copy of the complaint filed on behalf of the respondent shows that serious allegations assailing her chastity were made by the husband against the wife. In that complaint, hew went to the length of falsely charging for cheating her, her brother, his landlord Lakhbir singh and Dr. Bhagat Singh, who treated her of the burnt hand, which was burnt as a result of culpable conduct of kicking off the kettle by the husband, in which the wife was boiling water for preparation of tea for her brother, Kapur Singh. It is stated that the wife left the house of her husband on the occasion of Diwali in the month of November, 1963. The said complaint was filed by the husband against his wife and others on November 22, 1963. The incident pertaining to the burning of her hand took place on November 14, 1963. The Shrieks, which the wife gave out consequent upon the burning of the hand attracted Lakhbir Singh.

As both Lakhbir Singh and Kapur Singh remonstrated with the husband for that cruel kind of conduct on his part in kicking off the kettle containing boiled water and burning her hand and the unkindness and utter lack of sense of responsibility and respect shown by him towards Kapur Singh, his brother-in-law, the husband was ill at ease to deal with them including his wife and Dr. Bhagat Singh who treated her burnt hand. The application for maintenance under Section 488 of the Criminal Procedure code was made by the wife against the husband on January 17, 1964. That application shows that the husband did not want her to stay in his house, was not caring to maintain her and the wife was living at her parents house at village Jalla Majra. Being compelled by the circumstances of refusal on the part of her husband to maintain her, she had to stay at her parents house and to make application under Section 488 of the Criminal Procedure Code claiming maintenance allowance from her husband.

6. The preliminary evidence adduced on behalf of the husband in the complaint including the statement of the complainant himself failed to make out even prima facie case for offence under Section 420. India Penal code and consequently the Magistrate refused to issue any summons to the persons sought to be proceeded against. Thus, the complaint was filed by the husband to use it as a lever for harassment of his wife and her brother and others, who evinced interest in her out of sympathy against the cruel type of behaviour meted out to her at the hands of her husband.

7. The evidence of Lakbir Singh, Kapur Singh and the wife herself admits of no doubt that she was being cruelly treated by her husband and that he frequently coerced her to extract money from her parents and pay the same to him and that she was frequently being rediculed over the insufficiency of the dowry.,. which she brought along with her on the occasion of her marriage. The statements of Kapur Singh and the wife admit of no doubt that a sum of Rs. 5,000/- was demanded by the husband from the wife and the demand was expected to be met by Kapur Singh on the date when he was present in the house. Finding that the demand of the husband to extort money from Kapur Singh, brother of the wife was not legitimate. Kapur Singh quite rightly declined to meet that demand. Instead of realising about his mistake for having made that unwarranted demand for payment of Rs. 5000/- from Kapur Singh, the husband kicked off the kettle towards his wife and burnt her hand. It is clear case of cruel treatment on the part of the husband to his wife.

If a husband can physically torture his wife by burning her hand with boiling water, and can also mentally torture her by filing false complaint making serious allegations of her unchastity and cheating against her and her brother and his landlord, who showed sympathy for the wife and also against the doctor, who treated her, the wife is fully justified in bidding good-bye to his hearth and home and seek assylum for her safety and security under the roof of her parents. It is not at all a case, in which there in any justification for the stand of the husband that she had withdrawn herself from his society without any reasonable cause. On the other hand, the evidence admits of no other inference except the one that it is the cruel treatment given by the husband to the wife that the wife had to withdraw herself from his society and to seek shelter in her parents house.

8. In support of his allegations, the husband produced Boor Singh, Shangara Singh, Ajaib Singh, and Gurdial Singh. They have made vague allegations saying that the wife left the house in the absence of the husband and that the husband did not cruelly treat her nor in their presence made any demand of money either from her or from her brother, Kapur Singh. They have also stated that in spite of the efforts make on the part of the husband to have the hand of his wife restored to him, Kapur Singh, brother of the wife stood in the way and would not allow her to go back to he house of her husband. These are oral allegations and do not fit in with the above referred to circumstances pertaining to the burning of hand of the wife by the husband making of a false complaint against her and others and the wife being compelled to make an application under Section 488 of the Criminal Procedure Code to claim maintenance allowance from her husband. No grounds have been make out to disturb the findings of fact given by the trial court under both the issues determined against the husband. In the result, the appeal fails and is disallowed with no order as to costs.